No. 1: ‘SCOTUScare’

“We should start calling this law SCOTUScare.”

No. 2: Supreme Court Plays Favorites

“But this Court’s two decisions on the Act will surely be remembered through the years. The somersaults of statutory interpretation they have performed (‘penalty’ means tax, ‘further [Medicaid] payments to the State’ means only incremental Medicaid payments to the State, ‘established by the State’ means not established by the State) will be cited by litigants endlessly, to the confusion of honest jurisprudence. And the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites.”

No. 3: Making a ‘Parody’ of The Federalist Papers

“Just ponder the significance of the Court’s decision to take matters into its own hands. The Court’s revision of the law authorizes the Internal Revenue Service to spend tens of billions of dollars every year in tax credits on federal Exchanges. It affects the price of insurance for millions of Americans. It diminishes the participation of the States in the implementation of the Act. It vastly expands the reach of the Act’s individual mandate, whose scope depends in part on the availability of credits. What a parody today’s decision makes of Hamilton’s assurances to the people of New York: ‘The legislature not only commands the purse but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over . . . the purse; no direction . . . of the wealth of society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL but merely judgment.’”

No. 4: ‘Quite Absurd’

“The Court holds that when the Patient Protection and Affordable Care Act says ‘Exchange established by the State’ it means ‘Exchange established by the State or the Federal Government.’ That is of course quite absurd, and the Court’s 21 pages of explanation make it no less so.”

No. 5: ‘So Obvious’

“This case requires us to decide whether someone who buys insurance on an Exchange established by the Secretary gets tax credits. You would think the answer would be obvious—so obvious there would hardly be a need for the Supreme Court to hear a case about it.”

No. 6: ‘Pure Applesauce’

“The Court claims that the Act must equate federal and state establishment of Exchanges when it defines a qualified individual as someone who (among other things) lives in the ‘State that established the Exchange.’ … Otherwise, the Court says, there would be no qualified individuals on federal Exchanges, contradicting (for example) the provision requiring every Exchange to take the ‘”interests of qualified individuals”‘ into account when selecting health plans. … Pure applesauce.”

No. 7: Court’s ‘Overriding Principle’

“Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”

No. 8: ‘Not Our Place’

“This Court holds only the judicial power—the power to pronounce the law as Congress has enacted it. We lack the prerogative to repair laws that do not work out in practice, just as the people lack the ability to throw us out of office if they dislike the solutions we concoct. …

“Trying to make its judge-empowering approach seem respectful of congressional authority, the Court asserts that its decision merely ensures that the Affordable Care Act operates the way Congress ‘meant [it] to operate.’ … [T]he Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers. …

“Even less defensible, if possible, is the Court’s claim that its interpretive approach is justified because this Act ‘does not reflect the type of care and deliberation that one might expect of such significant legislation.’ … It is not our place to judge the quality of the care and deliberation that went into this or any other law. A law enacted by voice vote with no deliberation whatever is fully as binding upon us as one enacted after years of study, months of committee hearings, and weeks of debate. Much less is it our place to make everything come out right when Congress does not do its job properly. It is up to Congress to design its laws with care, and it is up to the people to hold them to account if they fail to carry out that responsibility.”

No. 9: ‘Interpretive Distortions’ Ignore the Constitution

“The Court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery. That philosophy ignores the American people’s decision to give Congress ‘[a]ll legislative Powers’ enumerated in the Constitution.”

No. 10: ‘Jiggery-pokery’

“The Court’s next bit of interpretive jiggery-pokery involves other parts of the Act that purportedly presuppose the availability of tax credits on both federal and state Exchanges.”

No. 11: Increasing SCOTUS’ Power

“The Court’s insistence on making a choice that should be made by Congress both aggrandizes judicial power and encourages congressional lassitude.”

No. 12: ‘Unheard Of’

“Ordinary connotation does not always prevail, but the more unnatural the proposed interpretation of a law, the more compelling the contextual evidence must be to show that it is correct. Today’s interpretation is not merely unnatural; it is unheard of.”

No. 13: ‘Feeble Arguments’

“Faced with overwhelming confirmation that ‘Exchange established by the State’ means what it looks like it means, the Court comes up with argument after feeble argument to support its contrary interpretation.”

No. 14: ‘Why Context Matters’

“Context always matters. Let us not forget, however, why context matters: It is a tool for understanding the terms of the law, not an excuse for rewriting them.”

No. 15: SCOTUS Cannot ‘Rescue Congress’

“Perhaps sensing the dismal failure of its efforts to show that ‘established by the State’ means “established by the State or the Federal Government,’ the Court tries to palm off the pertinent statutory phrase as ‘inartful drafting.’ … This Court, however, has no free-floating power ‘to rescue Congress from its drafting errors.’”

No. 1: SCOTUS Is a ‘Threat’

“I write separately to call attention to this Court’s threat to American democracy.”

No. 2: Our New Rulers

“[I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact—and the furthest extension one can even imagine—of the Court’s claimed power to create ‘liberties’ that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

No. 3: Naked Claim to Power

“This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ ‘reasoned judgment.’ A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.”

No. 4: ‘Pretentious’ and ‘Egotistic’

“The opinion is couched in a style that is as pretentious as its content is egotistic. It is one thing for separate concurring or dissenting opinions to contain extravagances, even silly extravagances, of thought and expression; it is something else for the official opinion of the Court to do so.”

No. 5: Five Justices Think They Know All

“The five Justices who compose today’s majority are entirely comfortable concluding that every State violated the Constitution for all of the 135 years between the Fourteenth Amendment’s ratification and Massachusetts’ permitting of same-sex marriages in 2003. They have discovered in the Fourteenth Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since. They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not. They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their ‘reasoned judgment.’ These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago, cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution.”

No. 6: Court’s Reputation Diminished

“The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.”

No. 7: ‘Profoundly Incoherent’

“[T]he opinion’s showy profundities are often profoundly incoherent. ‘The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.’ (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.)

“Rights, we are told, can ‘rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.’ (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?)

“And we are told that, ‘[i]n any particular case,’ either the Equal Protection or Due Process Clause ‘may be thought to capture the essence of [a] right in a more accurate and comprehensive way,’ than the other, ‘even as the two Clauses may converge in the identification and definition of the right.’ (What say? What possible ‘essence’ does substantive due process ‘capture’ in an ‘accurate and comprehensive way’? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses ‘converge in the identification and definition of [a] right,’ that is only because the majority’s likes and dislikes are predictably compatible.)”

No. 8: Supreme Court ‘Ends’ Public Debate

“When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. … Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

“But the Court ends this debate, in an opinion lacking even a thin veneer of law.”

No. 9: A ‘Judge-Empowering’ Decision

“Buried beneath the mummeries and straining-to-be-memorable passages of the opinion is a candid and startling assertion: No matter what it was the People ratified, the Fourteenth Amendment protects those rights that the Judiciary, in its ‘reasoned judgment,’ thinks the Fourteenth Amendment ought to protect. That is so because ‘[t]he generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions . . . . ‘ One would think that sentence would continue: ‘. . . and therefore they provided for a means by which the People could amend the Constitution,’ or perhaps ‘. . . and therefore they left the creation of additional liberties, such as the freedom to marry someone of the same sex, to the People, through the never-ending process of legislation.’ But no. What logically follows, in the majority’s judge-empowering estimation, is: ‘and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.’ The ‘we,’ needless to say, is the nine of us.”

No. 10: Violating Principles

“[T]o allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation.”

No. 11: Overthrowing the Government

No. 12: ‘One Step Closer …’

“With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the ‘reasoned judgment’ of a bare majority of this Court—we move one step closer to being reminded of our impotence.”